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[2009] ZALCJHB 13
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Rickert v Department of Correctional Services and Others (JR1526/08) [2009] ZALCJHB 13 (27 November 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT REPORTABLE
CASE
NO: JR1526/08
In
the matter between:
CHELFRANCHE
CLARISSA RICKERT
APPLICANT
and
DEPARTMENT
OF CORRECTIONAL
SERVICES
1
ST
RESPONDENT
MR.
PRAKASH ROOPA N.O.
2
ND
RESPONDNET
GENERAL
PUBLIC SERVICE
CO-ORDINATING
BARGAINING
COUNCIL
(GPSCBC)
3
RD
RESPONDENT
JUDGMENT
Molahlehi J
Introduction
[1]
This is an application to review and set
aside the arbitration award issued by the second respondent (the
commissioner) under case
number PSGA170-06/07 dated 20
th
March 2008. In terms of the arbitration award the commissioner found
the dismissal of the applicant to have been substantively
fair.
[2]
The review application was initially set
down on the unopposed roll. However, when the matter was called in
Court, it transpired
that the first respondent wanted to oppose the
matter. In this regard counsel for first respondent submitted that
the reason why
the first respondent had not filed opposing papers was
because the review application was never served to the first
respondent
and that accordingly the first respondent will apply for a
postponement of the matter in order to allow it to file opposing
papers.
[3]
This Court took issue with the fact that
the applicant in her papers did not cite the first respondent
correctly in its capacity
as the political head responsible for the
administration of the department of correctional services and the
fact that it was not
clear from the citation itself whether this
matter involved the department of correctional services nationally or
provincially.
This Court also had difficulty with the fact that the
bargaining council was not properly cited on the face of the papers
but was
only referred to elsewhere in the application.
[4]
The applicant opposed the application for
postponement and produced a registered mail slip indicating that she
served the review
application to the first respondent through a
registered mail. In as far as the irregularities pointed out above
were concerned,
the applicant pleaded with this Court to condone such
irregularities and attributed such to the fact that she is a lay
person and
she could not afford to pay for the services of a lawyer.
She submitted that all that she wanted was to have her matter
determined
by the Court on its merits.
[5]
The first respondent submitted an affidavit
to this Court deposed by Mr Thinanelwi Godfrey Rammbasa (Rammbasa), a
deputy director
of the Department of Correctional Services and
Regional Coordinator: Legal Services for Limpopo, Mpumalanga and
North West Province,
wherein Rammbasa explained the reasons why the
first respondent did not oppose this review application.
[6]
Rammbasa submitted that he became aware of
the review application launched by the applicant on or about 23
rd
June 2009 when he received a copy of the record of the proceedings
from Rooigrond Area Commissioner, North West Province. He continued
to state that on the 26
th
June 2009, he visited the office of the Registrar of this Court for
the purposes of uplifting the Court file so that he could verify
whether or not the notice of motion was served on the office of the
Area Commissioner or the State Attorney but could not find
the file
on that particular day.
[7]
Rammbasa submitted further that on the 17
th
July 2009, he went back to the Registrar of this Court to check if
the file had been found wherein he discovered that the matter
had
already been set down on the unopposed roll for the 20
th
August 2009. Rammbasa submitted further that service of documents was
irregular as it did not comply with Rule 4 (1) (b) (vi) of
the Rules
of the Labour Court.
[8]
In terms of this Rule service on the State
or Province is by serving a copy on a responsible employee in any
office of the State
Attorney or by any other means authorised by the
Court.
[9]
This Court takes into account the fact that
the applicant was unrepresented in this matter and the relevant
processes involved in
reviewing the arbitration awards seems to have
confused her. However, the applicant conceded that she had sent the
review papers
to the first respondent itself and not through the
office of the State Attorney. She further pleaded with this Court to
determine
the merits of her matter as she was struggling to survive
because she continued to be unemployed with three children whose
father
had passed away.
[10]
This Court invited counsel for the first
respondent to take instruction from her client to see if indeed this
matter could not be
finalised despite the difficulties that were
associated with it taking into account the personal circumstances of
the applicant.
After this Court having stood down the matter to allow
counsel for the first respondent to take instruction from her client,
counsel
indicated that the first respondent was ready to argue the
matter as it was.
[11]
Accordingly, this Court made a ruling that
the matter should be placed on the opposed roll and proceeded to hear
the submissions
of both parties on the merits of the review.
Background facts
[12]
The applicant was dismissed subsequent to
being found guilty in a disciplinary hearing of a prohibited
substance in the form of
dagga inside the premises of the Department
of Correctional Services at Rooigrond Correctional Services on the
16
th
April 2005. The applicant had chosen to remain silent and did not put
her version before the chairperson of the disciplinary hearing.
[13]
On the 16
th
April 2005, the Acting Head of the prison at the time of the incident
leading to the dismissal of the applicant Mr Ntwe ordered
the morning
parade for the prison wardens. It is alleged that the applicant and a
certain Mr Mokoma entered the prison without
attending the parade. Mr
Ntwe then ordered that they be brought to his office. On their
arrival he indicated that they would be
searched as the prison was
experiencing a serious problem with dagga being constantly found from
the inmates.
[14]
Two female officers were asked to search
the applicant in another office. It is alleged that six bank plastic
bags full of dagga
were found on the person of the applicant. Mr Ntwe
ordered that her house be searched but nothing was found. The
applicant was
removed from the first respondent’s premises and
criminal charges were pressed against her.
Grounds for review and
arbitration award
[15]
The applicant contends that she feels
aggrieved because the arbitration hearing was unfair since the
commissioner was biased and
favoured the management side. In support
of this contention the applicant states that the commissioner asked
questions which were
prejudicial to her case. The applicant further
contends that no proof or evidence was given by the first
respondent’s witnesses
during the arbitration hearing and that
the first respondent’s witnesses contradicted themselves. The
applicant further complains
about the fairness of the sanction of
dismissal.
[16]
In his brief analysis of the evidence and
correctly so the commissioner made it clear right from the beginning
that the conflicting
versions of what happened to the criminal
proceedings instituted against the applicant and referred to during
the arbitration proceedings
had no bearing to the enquiry before him
and that he was obliged to consider the matter involving the
dismissal of the applicant
which she alleged was unfair
de
novo
.
[17]
The commissioner in upholding the dismissal
of the applicant as fair reasoned as follows:
“
I
have no hesitation in finding that the version of the respondent is
far more credible and acceptable than that of the applicant.
I must point out that
the applicant did not challenge crucial and critical aspects of the
evidence of the witnesses called by the
respondent. There were
numerous examples hereof during the entire proceedings, and a few of
them will suffice to illustrate the
point. Mrs. Riekert never put her
later version to the witnesses that she suddenly noticed the dagga on
the table while undressing.
She did not dispute that she started
crying and begged Mrs Kgomonyane and Mrs Cingi to leave her alone.
She did not challenge Mr.
Ntwe when he testified that he had been
informed that she had not attended the parade. She did not challenge
his testimony that
she admitted to him that the dagga was hers.”
The test for review
[18]
The test for review is set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ
2405 (CC).
The enquiry is based on the
reasonable decision-maker test. The purpose of the test is to
determine whether the decision reached
by the commissioner is one
which a reasonable decision maker could not reach. In assessing the
reasonableness of the award the
Court takes into account the material
evidence which was before the commissioner during the arbitration
proceedings.
[19]
In
Fidelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and others
[2008] 3 BLLR 197
(LAC),
the Court emphasized that the reasonable decision maker’s test:
“…
is
a stringent test that will ensure that such awards are not lightly
interfered with. It will ensure that, more than before, and
in line
with the objective of the Act and particular the primary objective of
the effective resolution of disputes, awards of the
CCMA will be
final and binding as long as it cannot be said that such a decision
or award is one that a reasonable decision-maker
could not have made
in the circumstances of the case. It will not be often that the
decision of the arbitration award of the CCMA
is found to be one that
a reasonable decision-maker could not, in all circumstances, have
reached.”
Evaluation
[20]
The record of the proceedings bears no
support for the contention that the commissioner was biased. The
commissioner was aware and
took account of the fact the applicant was
unrepresented during the proceedings. The commissioner explained to
the applicant in
great details the process involved from the opening
statements, examination in chief, cross-examination and
re-examination. Accordingly,
the applicant complaint against the
commissioner is unsustainable in my view.
[21]
The degree of proof required in arbitration
proceedings is that a party (employer) to the dispute must prove its
case on a balance
of probabilities. Proof on a balance of
probabilities in effect means that arbitrators or commissioners will
weigh the respective
cases of the two parties and the party whose
version is more probable will win. The employer is required to prove
on the balance
of probabilities that the employee in fact committed
the misconduct and that the dismissal was accordingly for a fair
reason. The
employer must also prove on the balance of probabilities
that it had complied with the procedural requirements of the type of
dismissal
concerned. See
Early Bird
Farms (Pty) Ltd v Mlambo
[1997] 5 BLLR 541
(LAC).
[22]
The second complaint by the applicant that
no proof or evidence was given by the first respondent during the
arbitration hearing
in the form of the alleged dagga found on her or
a forensic certificate indicating that the substance in question was
tested scientifically
and found to be dagga bears no merit and is
accordingly rejected.
[23]
The essence of the third complaint by the
applicants is that the first respondent’s witness, Ms
Kgomanyane testified during
the arbitration hearing that she and Ms
Cindi were asked by Mr Ntwe to conduct a body search on the applicant
wherein they proceeded
to the nearby office where the search was
conducted. She testified that the applicant removed some of her
clothing and that she
found two packets of dagga in the jacket of the
applicant and another four packets of dagga were found on the
applicant by Ms Cindi.
During the cross-examination Ms Kgomanyane was
asked by the applicant to comment about the statement she made at the
police station
on the day of the incident when she said the applicant
undressed herself, cried and took off four packets of dagga. Ms
Kgomanyane
could not comment.
[24]
It is trite that in review the Court does
not concern itself with the correctness of the decision of the
commissioner but rather
with the reasonableness of his or her
conclusion. In my view the applicant has failed to make out a case
warranting interference
with the commissioner’s award by this
Court.
[25]
Turning to the last complaint levelled
against the commissioner that the sentence was not fair, equitable
and consistent if compared
with other decided cases, there was no
evidence led with regard to this aspect. Even the heads of argument
prepared by the applicant’s
attorney at the end of the hearing
of this matter does not deal with this aspect at all. I am
accordingly unable to fault the commissioner
in this regard. I am
also unable to fault the commissioner with regard of his finding that
the applicant did not challenge crucial
and critical aspects of the
evidence of the witnesses called by the respondent and that her
versions were not put to them.
[26]
The evidence of Mr Ntwe that as the acting
head of the prison at the time, he addressed morning parades every
Saturday and Sundays
and that he persistently told everyone including
the applicant that no one was allowed to go into the prison before
the parade
was finished remained unchallenged. So the argument of the
applicant that on the day in question she was not aware or she was
not
told that she was supposed to attend the parade stand to be
rejected and the analysis of the commissioner in this regard cannot
be faulted.
[27]
There is further no merit in the argument
of the applicant that the dagga in question was not scientifically
tested and accordingly
the first respondent’s witnesses could
not say with certainty that it was dagga. The applicant’s
versions that she
suddenly noticed the dagga on the table while she
was undressing was correctly rejected by the commissioner because it
was not
put to the first respondent’s witnesses and is
unbelievable.
[28]
In the circumstances, I am of the view that
the award of the commissioner cannot be faulted for being
unreasonable.
[29]
In the premises I make the following
order:
(i)
The application to review and set aside the
arbitration award issued under case number PSGA 170-06/07 dated 20
th
March 2008, is dismissed.
(ii)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
20
th
August 2009
Date
of Judgment :
27
th
November 2009
Appearances
For
the Applicant :
Mrs C Rickert (in person)
For
the Respondent: Adv T A N
Makhubele
Instructed
by :
The State Attorney